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Trump and the Rule of Law

Holding office isn’t a shield from accountability.

March 28, 2023

You’re read­ing The Brief­ing, Michael Wald­­­­­man’s weekly news­­­­­­­­­let­ter. Click here to receive it every week in your inbox.

It’s a crucial moment for the rule of law in the United States. Donald Trump faces no fewer than four criminal investigations. Two are before a federal grand jury. One is unfolding in Fulton County, Georgia, where Trump was caught on tape asking Secretary of State Brad Raffensperger to help him “find” enough extra votes to overturn the 2020 presidential election.

And last week Trump announced that he would soon be arrested in New York. Perhaps you’ve heard?

Ever since then, we’ve been subjected to hurricane-force speculation and fact-free punditry. My advice: Calm down. Let’s wait for the grand jury to review the evidence and vote on potential charges before we opine on whether they’re warranted. Trump’s former attorney Michael Cohen already went to prison for his role in the hush-money scheme. And there are likely details and facts not yet public. So I’ll refrain from punditry on the case. We’ll know soon enough. 

There are some things we do know, however.

First, as John Adams put so well, ours must be “a government of laws and not of men.” No other former U.S. president has been criminally charged, reflecting a strong democratic norm. But Trump flouts the law as few other public figures ever have. And other stable democracies’ ex-presidents have faced legal culpability (including in France and Israel). Corrupt public officials face prosecution all the time. We strive for a legal system that holds those who violate the law accountable. Nobody should be above the law — certainly not former presidents.

Second, we cannot flinch from naming the outrageous assault on the rule of law being perpetrated by Trump and his supporters. He’s within his rights to howl at the prospect of going to jail. But Trump has gone far beyond that, threatening “death & destruction” if he is charged, calling Manhattan District Attorney Alvin Bragg an “animal,” posting an image  in which he threatens Bragg with a baseball bat, and so on. Trump is trying to rev up the machine of violence we saw on January 6, 2021. We should remember that the courts are the country’s institutional safeguard against malicious prosecution, not the mob.

Trump’s enablers in Congress have been busy too. Sen. Rand Paul (R-KY) called for Bragg’s arrest. House Republican committee chairs demanded that he testify about the ongoing probe. Congress can examine state and federal policy, but the GOP’s bid to interfere with a pending county-level indictment is, as Bragg put it, an “unprecedent[ed] inquiry by federal elected officials into an ongoing matter.” These lawmakers aren’t concerned with the law in New York — they’re concerned about the defendant in New York. Georgia lawmakers, too, are responding to the potential prosecution in Fulton County by introducing legislation to establish an oversight board that could sanction or even remove district attorneys.

One final note: I can’t think of anybody I would trust more to make the tough judgments involved in this case than Alvin Bragg. He’s savvy, smart, and principled — a prosecutor and public servant for two decades and a powerful voice for the idea that public safety and fairness go hand in hand. (My colleague Lauren-Brooke Eisen, who leads the Brennan Center’s Justice Program, co-chaired his transition team when he became district attorney in 2022.)

Those who care about the rule of law and the fair administration of justice should recognize that Trump’s call for violence against Bragg and his office represents outrageous and politically motivated interference with the judicial process. If Trump is indicted in Manhattan, it will be because a grand jury found reasonable cause to believe he committed a crime, based on legally sufficient evidence.

Bragg says he will “continue to follow the facts and be guided by the rule of law in everything we do.” John Adams could not have said it better.